Livezey v. United States

• Decision Date: 10 March 1922
• Docket Number: 3764.
• Citation: 279 F. 496
• Parties: LIVEZEY v. UNITED STATES.
• Court: U.S. Court of Appeals — Fifth Circuit

279 F. 496

LIVEZEY v. UNITED STATES.

No. 3764.

United States Court of Appeals, Fifth Circuit.

March 10, 1922

Jed C Adams and W. B. Harrell, both of Dallas, Tex., for plaintiff in error.

Henry Zweifel, U.S. Atty., of Fort Worth, Tex. (Ben P. Allred Asst. U.S. Atty., of Fort Worth, Tex., on the brief), for the United States.

Before WALKER, BRYAN, and KING, Circuit Judges.

BRYAN Circuit Judge.

Plaintiff in error, hereinafter called defendant, was convicted on an indictment charging him with having violated section 215 of the Penal Code (Comp. St. Sec. 10385).

The District Judge had sustained a demurrer to a former indictment which sought to charge the same offense. A motion to quash the indictment in this case was made upon the ground that the evidence upon which it was found was insufficient and incompetent. Evidence was submitted in support of the motion, from which it appeared that the indictment was found upon the testimony of a post office inspector, and upon documentary evidence consisting of books of account, canceled checks and drafts, of minutes of directors' meetings of the Little Motor Kar Company, a corporation of which defendant was president, and of pamphlets, circulars advertisements, and newspaper articles delivered to and transmitted by the post office establishment as mail matter. The post office inspector testified that prior to the time he appeared before the grand jury he had examined the books and papers of the Little Motor Kar Company, and that he was familiar with the documentary evidence above mentioned, and that he had examined certain buildings, which that corporation had erected for the ostensible purpose of being used in connection with the manufacture of automobiles at its plant in Texas; that the said buildings were poorly constructed and were not suitable for use for such purpose. Upon this showing the court denied the defendant's motion to quash the indictment.

The indictment charges that defendant and others devised a scheme 'to defraud persons residing in the United States * * * of their money and property, * * * and to obtain from such persons money and property by means of false and fraudulent representations, pretenses and promises'; that the scheme was to obtain money on subscriptions to the capital stock of the Little Motor Kar Company, to devote only enough of the money so obtained to make a display, and to embezzle and convert the greater part of it. The indictment then sets out a printed advertisement and a letter, which it alleges the defendants deposited in the mails in furtherance of their scheme to defraud.

Over defendant's objection, the court admitted testimony of the company's attorney to the effect that he was present at a conference between defendant and two other officers of the company, and that the defendant then and there admitted that he had withdrawn thousands of dollars of funds on deposit to the credit of the company, with which he had purchased a farm in the state of Maryland, which he claimed and to which he had taken title in his own name. The attorney testified that he did not learn anything at the conference, and admitted that he had been indicted separately for complicity in the crime charged against the defendants then on trial. The bill of exceptions shows the following admission:

'It is also agreed that practically all the facts testified to by the witness W. T. Carlton and objected to as being privileged communications were matters of record in the files and records of the Little Motor Kar Company and introduced in evidence on this trial by the government. It is also agreed that in addition to and outside of this testimony given by the witness W. T. Carlton, and objected to by defendants, as shown above, there was other evidence offered by the government sufficient to support the jury's finding of guilty.'

Receivers of the Little Motor Kar Company had been appointed in Texas, Maryland, and Ohio. These receivers had come into possession of the books and papers of the corporation, and they delivered them to the post office inspector, or to the district attorney, for examination and for use as evidence at the trial of this case. Among these papers were also found many canceled checks showing payments of corporation funds in large amounts to the defendant. Over defendant's objection and exception, these books of account and canceled checks were admitted in evidence.

By appropriate assignments it is contended that the trial court erred: (1) In denying the motion to quash the indictment; (2) in overruling the demurrer to the indictment; (3) in admitting in evidence the attorney's testimony; (4) in admitting in evidence the corporation's books of account and canceled checks; (5) and in refusing to charge the jury as requested.

1. The courts are not in harmony as to the propriety of inquiring into the sufficiency or competency of evidence before grand juries. Some of the courts hold that such an inquiry is proper, while others refuse...